ShuttleCloud for G Suite Terms & Conditions
2. Migration Service. Subject to Customer’s payment of the applicable fees and under the terms of and subject to the restrictions in this Agreement, the Company will provide to Customer the ShuttleCloud Email Migration Tool (the “Migration Service”) purchased by Customer pursuant to an Order Form between Customer and the Company (an “Order Form”) for the number of migration licenses set forth in the Order Form. Customer’s rights to use the Services are non-exclusive and non-transferable. The Company may from time to time modify the Service and add, change, or delete features of the Service in its sole discretion. Customer’s continued use of the Service after any such changes to the Service constitutes Customer’s acceptance of these changes.
3. G Suite Service. Subject to Customer’s payment of the applicable fees and under the terms of and subject to the restrictions in this Agreement, the Company will provide Customer access to Google’s G Suite Service (“G Suite”), provided by Google, resold under agreement by the Company, and purchased by Customer pursuant to an Order Form between Customer and the Company (an “Order Form”) for the number of licenses previously existing in the G Suite subscription or as otherwise agreed, and for the G Suite version previously used by the subscription or as otherwise agreed. The use of G Suite is subject to the acceptance of the terms & conditions of the G Suite Service as specified by Google.
4. Customer Access and Acknowledgements. Depending upon the Service selected by Customer and its specific configuration, the Company may be granted domain-wide access to sensitive information in the Customer domain, such as the list of users and access to email information. Customer acknowledges and agrees that it has all necessary rights, consents, and authority to use the Service with respect to all email accounts registered by Customer to be used with the Service. The Company agrees that all email and user information obtained by the Company hereunder will be used by the Company solely to the extent necessary to provide the Service to Customer.
Customer further acknowledges and agrees that Customer is solely responsible for: (a) all use of the Service by Customer and any other party utilizing Customer’s email account(s), with or without authorization; (b) maintaining the confidentiality of Customer’s email account(s) and password(s); and (c) ensuring that Customer’s use of the Service and Customer’s email account(s) complies with all applicable Federal, state, and local privacy and data security rules, regulations and laws. Customer further acknowledges and agrees that the Company has no control over and shall not be responsible for any changes by Customer’s email provider to the email application, including, without limitation, such changes which may affect the Service, and Customer shall indemnify and hold the Company harmless with respect to any losses, damages, or claims arising therefrom, pursuant to Section 17 below.
5. Free Trial. Depending upon the specific use case and situation of the customer, a Free Trial may be provided for the G Suite Service and/or for the Migration Service. If Customer registers for a free trial, the Company will make the service available to Customer on a trial basis free of charge until the earlier of (a) the exhaustion of the licenses provided as basis for the free trial, or (b) the start date of any purchased subscriptions ordered by Customer for the Services. Additional trial terms and conditions may appear on the trial registration web page for the specific services. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
CUSTOMER DATA ON THE COMPANY’S SYSTEMS OR IN THE COMPANY’S POSSESSION OR CONTROL, ONGOING EMAIL MIGRATIONS, G SUITE INFORMATION INCLUDING BUT NOT LIMITED TO EMAILS INCLUDING ATTACHMENTS, AND ANY CUSTOMIZATIONS MADE TO THE SERVICE BY OR FOR CUSTOMER DURING THE FREE TRIAL MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE FREE TRIAL PERIOD UNLESS CUSTOMER PURCHASES THE SAME SERVICE AS THOSE COVERED BY THE TRIAL OR PURCHASES AN UPGRADED SERVICE BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING THE FREE TRIAL THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES.
6. Fees for the Migration Service. Customer shall pay the Company the applicable fees as set forth in an order form issued by the Company and accepted by Customer (an “Order Form”). Unless otherwise set forth on such Order Form, fees shall be payable within seven (7) days after the date of Company’s invoice. In the event Customer fails to make payment of the applicable fees when due, the Company reserves the right to not execute any email migrations for Customer, or to cancel ongoing migrations previously initiated by Customer, terminate this Agreement and Customer’s right to use the Service. Customer will pay the Company interest at the rate of one percent (1%) per month or the maximum amount permitted by applicable law, whichever is less, on any undisputed amount not fully paid within ten (10) days of its due date until any such amount is fully paid. If Customer breaches its obligation to make timely payment as provided hereunder, Customer agrees to pay all of the Company’s costs of collection, including, without limitation, all court costs and attorneys’ fees. In the event Customer has obtained access to the Service without fees or expense, the foregoing provisions of Section 6 shall not apply, and the Company shall have the right to suspend access to the Service or terminate this Agreement and Customer’s right to use the Service at any time and without liability to Customer.
7. Fees for the G Suite Service. Customer shall pay the Company the applicable fees as determined by the number of licenses, the G Suite Service purchased by the customer and the applicable G Suite price list, as determined in an order form issued by the Company and accepted by Customer (“Order Form”), or by Google’s official G Suite pricing in USD, in the event an Order Form is not available. Unless otherwise set forth on such Order Form, fees shall be payable within thirty (30) days after the date of Company’s invoice. In the event Customer fails to make payment of the applicable fees when due, the Company reserves the right to suspend Customer’s G Suite Service, including restricting access to Customer’s email service within the G Suite subscription, terminate this Agreement and Customer’s right to access the Service. Customer will pay the Company interest at the rate of one percent (1%) per month or the maximum amount permitted by applicable law, whichever is less, on any undisputed amount not fully paid within ten (10) days of its due date until any such amount is fully paid. If Customer breaches its obligation to make timely payment as provided hereunder, Customer agrees to pay all of the Company’s costs of collection, including, without limitation, all court costs and attorneys’ fees. In the event Customer has obtained the Service without fees or expense, the foregoing provisions of Section 7 shall not apply, and the Company shall have the right to suspend access to the Service or terminate this Agreement and Customer’s right to use the Service at any time and without liability to Customer.
9. Company's Representations and Limited Warranties. The Company represents and warrants to Customer that the Company: (i) has the full power and authority to enter into this Agreement; (ii) will not violate any local, state, national or international law or regulation in connection with the provision of the Services; and (iii) will provide the Services in accordance with this Agreement subject to the terms and conditions hereof.
10. DISCLAIMERS. EXCEPT AS PROVIDED FOR IN SECTION 9 ABOVE, THE COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; ALL SUCH REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, TITLE AND NON-INFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY MIGRATIONS, TRANSFERS, OR INFORMATION COPIED BY OR THROUGH THE SERVICES, OR THAT USE OF THE SERVICES OR ANY PORTION THEREOF WILL BE WITHOUT FAILURES, UNINTERRUPTED, OR ERROR-FREE, WILL BE ACCESSIBLE IN ANY PARTICULAR HARDWARE/SOFTWARE ENVIRONMENT, OR WILL MEET CUSTOMER’S REQUIREMENTS. THE SERVICES IS NEITHER DESIGNED NOR INTENDED FOR HIGH-RISK ACTIVITIES.
Under no circumstances will the Company be held liable for any loss of Customer’s email, data, records, or other materials. Customer acknowledges that the Company has no control over the functioning of the Internet, G Suite, Gmail, or any other email provider, email service, or third-party applications used in connection with the Services, and the Company makes no representations or warranties of any kind regarding the performance of the Internet or any such third-party applications.
12. Intellectual Property. Customer agrees that the Company owns all intellectual property rights in and to the Services including but not limited to all software, scripts, programming and comparable materials used therein or related thereto (“Software”), trademarks, trade secrets, look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays, and any other proprietary rights associated therewith. Customer shall not copy, modify, reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. Customer further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party for such third party’s benefit. The Company reserves all rights in the Services not expressly granted to Customer hereunder. The Company shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, or other information provided by Customer relating to the Services.
13. Marketing. During the term of this Agreement and at any point thereafter, ShuttleCloud may publicly refer to Customer orally and in writing, including on ShuttleCloud's website, marketing materials and sales presentations, as a customer of ShuttleCloud, and may use Customer's logo for such purposes.
14. Technical Support. The Company may sell maintenance, technical, or other support for the Services or the Software pursuant to a separate agreement between the Customer and the Company. Except to the extent otherwise agreed by the Company in a separate written agreement with Customer, the Company expressly disclaims any obligation to provide updates, upgrades, bug fixes, patches or any similar service and Customer acknowledges that the Company has no express or implied obligation to do so and are not entering into this Agreement in reliance on any of the foregoing services. The Company may, from time to time, provide bug fixes for bugs or other; provided, however, in doing so the Company does not obligate itself to do so in future.
15. Term and Termination. (a) Term. This Agreement will be effective as of the earlier of: (a) the date Customer accepts this Agreement, or (b) the date the Customer first accesses or uses the Services, and, unless sooner terminated as herein provided, will continue until the term set forth in all active Order Forms hereunder have expired or been terminated.
(b) Termination for Convenience. The Company may discontinue providing the Services and terminate this Agreement at any time in its sole discretion, providing thirty (30) days prior notice of such termination and will refund Customer on a prorated basis for any fees prepaid by the Customer for the unused remainder of the term following the effective date of such termination. Customer may discontinue its use of the Services and terminate this Agreement at any time in its sole discretion by providing the Company with at least thirty (30) days’ prior written notice of its intent to so terminate. In the event of Customer’s termination for convenience, Customer will not be entitled to a refund of any fees paid and Customer agrees to pay the Company any unpaid fees covering the remainder of any subscription commitments, within thirty (30) days after the effective date of such termination.
(c) Termination for Breach. Either party may terminate this Agreement (i) thirty (30) days after providing written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such 30-day period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any such termination shall relieve the parties of all rights, obligations and liabilities to the other except, in the case of termination by the Company for Customer’s breach, for the payment of fees due by Customer for the remainder of the term set forth in the applicable Order Form, and except as provided for in Sections 10, 11, 12 and 15 through 20, which Sections shall survive the termination of this Agreement. In no event will termination relieve Customer of its obligation to pay any fees payable to the Company for the period prior to the effective date of termination.
16. Confidentiality and Security. “Confidential Information” means any information or data that is disclosed by one party to the other party pursuant to this Agreement that is marked as confidential or that such party does not generally make available to the public. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, and to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Without limiting the foregoing, Customer shall disclose and allow access to the Services only for the purpose of supporting and augmenting Customer’s use of the Services. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
17. Indemnification. Customer, at its expense, shall indemnify, defend and hold the Company and its officers, directors, owners, employees, and affiliates harmless from and against any and all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to Customer’s use of the Services, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to Customer’s breach of any representations, warranties, or covenants in this Agreement.
18. Liability. IF CUSTOMER HAS PAID FEES FOR THE SERVICES IN ACCORDANCE WITH SECTIONS 6 AND 7 ABOVE, IN NO EVENT SHALL THE COMPANY'S LIABILITY TO CUSTOMER FOR DAMAGES RESULTING FROM ANY CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT AND/OR USE OF THE SERVICES, WHETHER CAUSED BY FAILURE TO DELIVER, NONPERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE FEES PAYABLE TO THE COMPANY UNDER THIS AGREEMENT, AND THE COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT PROVIDED HEREUNDER OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE SERVICES, OR FOR ANY CLAIM MADE BY A THIRD PARTY REGARDLESS OF WHETHER THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
In the event Customer has obtained access to Services without fees or expense, the Customer acknowledges and agrees that the Compan shall have no liability whatsoever (whether in contract, tort, negligence, strict liability in tort, or by statute or under any other theory of law) to Customer or to any third party concerning performance or non-performance by the Company, or in any manner related to this Agreement or the Services. Customer further acknowledges and agrees that the exclusion of liability provided for in this paragraph is a reasonable limitation, and granted in consideration, of the fact Customer has obtained the Services without fees or expense. The exclusion of liability in this Section represents the agreed and bargained for understanding of the parties and the absence of compensation to the Company for the Services reflects such understanding. In the event the foregoing exclusion of liability is unenforceable under any applicable law, the parties further agree that in no event shall the Company's aggregate liability to Customer exceed $100, nor shall the Company be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
19. Dispute Resolution. The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Pennsylvania (USA), under the commercial arbitration rules of the American Arbitration Association ("AAA"). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party's rights hereunder through specific performance, injunction or similar equitable relief. This Agreement shall be interpreted, construed, and governed by the laws of the State of Pennsylvania, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
20. Miscellaneous. Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
Customer shall have no right to assign this Agreement or any of Customer's rights or obligations hereunder. The Company may assign this Agreement and any of its rights hereunder to third parties. Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
21. Amendment. The Company reserves the right, in its sole discretion, to modify or change this Agreement at any time by posting the changes to its website or through electronic notice to Customer. Customer's continued use of the Services following the posting or notice of such changes constitutes acceptance of those changes. Company will use reasonable commercial efforts to provide notice of material changes to Customer.